Microsoft Corporation v. The Software King et al

Filing 33

STIPUALTED PROTECTIVE ORDER re: 32 Stipulated MOTION for Protective Order. Signed by Judge Ricardo S Martinez. (PM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 MICROSOFT CORPORATION, a Washington corporation, 9 Plaintiff, 10 11 12 No. 2:16-cv-01899-RSM STIPULATED PROTECTIVE ORDER v. THE SOFTWARE KING, an unknown business entity, et al. Defendants. 13 14 15 1. PURPOSES AND LIMITATIONS 16 Discovery in this action is likely to involve production of confidential, proprietary, or 17 private information for which special protection may be warranted. Accordingly, the parties 18 hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. 19 The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer 20 blanket protection on all disclosures or responses to discovery; the protection it affords from 21 public disclosure and use extends only to the limited information or items that are entitled to 22 confidential treatment under the applicable legal principles, and it does not presumptively 23 entitle parties to file confidential information under seal. 24 2. 25 “CONFIDENTIAL” MATERIAL “Confidential” material shall include information contained or disclosed in any 26 materials, including documents or portions thereof; interrogatories, requests for admission, 27 requests for production of documents, and answers and responses thereto; deposition testimony STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 1 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 and transcripts; and any tangible things that a party believes is confidential and should be 2 designated as “CONFIDENTIAL.” Material so designated may include the following 3 categories of information: 4 (a) data about software activation attempts (“cyberforensic data”); 5 (b) a party’s process for collection, analysis, and use of cyberforensic data; 6 (c) Microsoft’s purchase through outside investigators of computer systems and 7 equipment from Defendants, and Microsoft’s analysis of those systems and equipment; (d) 8 9 the source of product keys sold by Defendants, and any investigations related thereto; 10 (e) confidential pricing and availability information of Microsoft products; 11 (f) contracts and license agreements between third parties and Microsoft or any 12 Defendant; 13 (g) the name, address, and/or contact information of Defendants’ customers; 14 (h) Defendants’ revenue, costs, income, or profitability; and 15 (i) Defendants’ pricing of services, software, or hardware. 16 3. SCOPE 17 The protections conferred by this agreement cover not only confidential material (as 18 defined above), but also (1) any information copied or extracted from confidential material; 19 (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any 20 testimony, conversations, or presentations by parties or their counsel that might reveal 21 confidential material. 22 However, the protections conferred by this agreement do not cover information that is 23 in the public domain or, without contravening any portion of this Stipulated Protective Order, 24 becomes part of the public domain through trial or otherwise. 25 4. 26 27 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed or produced by another party or by a non-party in connection with this case only for STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 2 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 prosecuting, defending, or attempting to settle this litigation. Confidential material may be 2 disclosed only to the categories of persons and under the conditions described in this 3 agreement. Confidential material must be stored and maintained by a receiving party at a 4 location and in a secure manner that ensures that access is limited to the persons authorized 5 under this agreement. 6 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 7 ordered by the Court or permitted in writing by the designating party, a receiving party may 8 disclose material designated as “CONFIDENTIAL” only to: (a) 9 the receiving party’s counsel of record in this action, no more than two 10 pre-designated in-house counsel per party who directly oversee and participate in this case, and 11 employees of counsel of record to whom it is reasonably necessary to disclose the information 12 for this litigation; 13 (b) 14 the officers, directors, and employees of the receiving party to whom disclosure is directly necessary for this litigation; (c) 15 experts and consultants to whom disclosure is reasonably necessary for 16 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 17 (Exhibit A); 18 (d) the Court, Court personnel, and court reporters and their staff; 19 (e) copy or imaging services retained by counsel to assist in the duplication 20 of ”CONFIDENTIAL” material, provided that counsel for the party retaining the copy or 21 imaging service instructs the service not to disclose any “CONFIDENTIAL” material to third 22 parties and to immediately return all originals and copies of any “CONFIDENTIAL” material; 23 (f) during their depositions, witnesses in the action to whom disclosure is 24 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be 25 Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the Court. 26 Pages of transcribed deposition testimony or exhibits to depositions that reveal, refer to, 27 STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 3 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 describe, or otherwise disclose “CONFIDENTIAL” material must be separately bound by the 2 court reporter and may not be disclosed to anyone except as permitted under this agreement; (g) 3 4 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 4.3 5 Filing Confidential Material. Before filing confidential material or discussing or 6 referencing such material in court filings, the filing party shall confer with the designating party 7 to determine whether the designating party will remove the confidential designation, whether 8 the document can be redacted, or whether a motion to seal or stipulation and proposed order is 9 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 10 standards that will be applied when a party seeks permission from the court to file material 11 under seal. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 14 party or non-party that designates information or items for protection under this agreement 15 must take care to limit any such designation to specific material that qualifies under the 16 appropriate standards. The designating party must designate for protection only those parts of 17 material, documents, items, or oral or written communications that qualify, so that other 18 portions of the material, documents, items, or communications for which protection is not 19 warranted are not swept unjustifiably within the ambit of this agreement. 20 Mass, indiscriminate, or routinized designations are prohibited unless discussed and 21 agreed to by the Parties in advance. Designations that are shown to be clearly unjustified or 22 that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the case 23 development process or to impose unnecessary expenses and burdens on other parties) expose 24 the designating party to sanctions. 25 If it comes to a designating party’s attention that information or items that it designated 26 for protection do not qualify for protection, the designating party must promptly notify all other 27 parties that it is withdrawing the mistaken designation. STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 4 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this 2 agreement, or as otherwise stipulated or ordered, disclosure or discovery material that qualities 3 for protection under this agreement must be clearly so designated before or when the material is 4 disclosed or produced. (a) 5 Information in documentary form: (e.g., paper or electronic documents 6 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 7 proceedings), the designating party must affix the term “CONFIDENTIAL” to each page that 8 contains confidential material. If only a portion or portions of the material on a page qualifies 9 for protection, the producing party also must clearly identify the protected portion(s) (e.g., by 10 making appropriate markings in the margins). (b) 11 Testimony given in deposition or in other pretrial or trial proceedings: 12 the parties must identify on the record, during the deposition, hearing, or other proceeding, all 13 protected testimony, without prejudice to their right to so designate other testimony after 14 reviewing the transcript. Any party or non-party may, within fifteen days after receiving a 15 deposition transcript, designate portions of the transcript, or exhibits thereto, as 16 ”CONFIDENTIAL.” If a party or non-party desires to protect confidential information at trial, 17 the issue should be addressed during the pre-trial conference. (c) 18 Other tangible items: the producing party must affix in a prominent place 19 on the exterior of the container or containers in which the information or item is stored the term 20 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant 21 protection, the producing party, to the extent practicable, shall identify the protected portion(s). 22 5.3 “Attorneys’ Eyes’ Only.” The parties shall have the right to further designate 23 Confidential Material or portions thereof as “ATTORNEYS’ EYES ONLY.” This designation 24 may be made upon a good faith belief that such Confidential Material contains one or more of 25 the following: 26 27 (a) highly sensitive personal information (e.g., personal tax returns or medical information); STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 5 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax (b) 1 2 highly confidential trade secrets related to Microsoft’s global piracy enforcement efforts unrelated to this lawsuit; or (c) 3 highly confidential trade secrets relating to research, development, 4 pricing, regulatory, or commercial information, the disclosure of which to any employee, 5 officer, director, consultant, contractor, subcontractor, or shareholder of any other party or any 6 of its affiliates would create a risk of significant injury to the designating party’s business. Disclosure of such Confidential Material designated as “ATTORNEYS’ EYES ONLY” 7 8 shall be limited to the persons designated in, and in accordance with, Section 4.2, subsections 9 (a), (c), (d), (e), (f), and (g). All other provisions herein applicable to Confidential Material 10 shall be applicable to Confidential Material designated as “ATTORNEYS’ EYES ONLY” 11 under this Section 5.3. 5.4 12 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 13 designate qualified information or items does not, standing alone, waive the designating party’s 14 right to secure protection under this agreement for such material. Upon timely correction of a 15 designation, the receiving party must make reasonable efforts to ensure that the material is 16 treated in accordance with the provisions of this agreement. 17 6. 18 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 19 confidentiality, including “ATTORNEYS’ EYES ONLY,” at any time. Unless a prompt 20 challenge to a designating party’s confidentiality designation is necessary to avoid foreseeable, 21 substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of 22 the litigation, a party does not waive its right to challenge a confidentiality designation by 23 electing not to mount a challenge promptly after the original designation is disclosed. 24 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 25 regarding confidential designations without court involvement. Any motion regarding 26 confidential designations or for a protective order must include a certification, in the motion or 27 in a declaration or affidavit, that the movant has engaged in a good faith meet and confer STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 6 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 conference with other affected parties in an effort to resolve the dispute without court action. 2 The certification must list the date, manner, and participants to the conference. A good faith 3 effort to confer requires a face-to-face meeting or a telephone conference. 6.3 4 Judicial Intervention. If the parties cannot resolve a challenge without court 5 intervention, the designating party may file and serve a motion to retain confidentiality under 6 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden 7 of persuasion in any such motion shall be on the designating party. Frivolous challenges, and 8 those made for an improper purpose (e.g., to harass or impose unnecessary expenses and 9 burdens on other parties) may expose the challenging party to sanctions. All parties shall 10 continue to maintain the material in question as confidential until the court rules on the 11 challenge. 12 7. 13 14 15 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party must: 16 (a) 17 18 the subpoena or court order; (b) 19 20 21 24 25 26 27 promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this agreement. Such notification shall include a copy of this agreement; and (c) 22 23 promptly notify the designating party in writing and include a copy of cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under this agreement, the receiving party must immediately (a) notify in writing the designating party of the STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 7 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 2 protected material, (c) inform the person or persons to whom unauthorized disclosures were 3 made of all the terms of this agreement, and (d) request that such person or persons execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 5 9. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a producing party gives notice to receiving parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. Parties shall confer on an appropriate non-waiver order under Fed. R. Evid. 502. 10. NON TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, each receiving party must return all Confidential Material to the producing party, including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. Notwithstanding the requirements of this paragraph, however, a party’s outside counsel of record is not required to delete copies of “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” material that may reside on their respective firm’s email archive or electronic back-up systems. In addition, , each party’s counsel of record is entitled to retain one archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such material contains confidential material. The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED this 30th day of December, 2017. 27 STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 8 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax DAVIS WRIGHT TREMAINE LLP Attorneys for Plaintiff Microsoft Corp. 1 2 By /s/ James Harlan Corning Bonnie E. MacNaughton, WSBA #36110 James Harlan Corning, WSBA #45177 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Tel: (206) 622-3150 Fax: (206) 757-7700 Email: 3 4 5 6 7 CHRISTENSEN O’CONNOR JOHNSON KINDNESS PLLC Attorneys for Defendants BizIgnition Technologies, Inc., Nicholas Bozikis, and Roger Hardy 8 9 10 By /s/ Brian F. McMahon * John D. Denkenberger, WSBA No. 25,907 James W. Anable, WSBA No. 7,169 Brian F. McMahon, WSBA No. 45,739 1201 Third Avenue, Suite 3600 Seattle, WA 98101 Telephone: 206.682.8100 Fax: 206.224.0779 E-mail:,,, 11 12 13 14 15 16 BRESKIN JOHNSON & TOWNSEND PLLC Attorneys for Defendant Winston Cabell 17 18 By /s/ Roger M. Townsend * Roger M. Townsend, WSBA #25525 1000 Second Avenue, Suite 3670 Seattle, WA 98104 Tel: (206) 652-8660 Fax: (206) 652-8290 Email: 19 20 21 22 23 * authorized via email on 11/30/17 ORDER 24 PURSUANT TO STIPULATION, IT IS SO ORDERED. 25 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of 26 any documents in this proceeding shall not, for the purposes of this proceeding or any other 27 proceeding in any other court, constitute a waiver by the producing party of any privilege STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 9 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 applicable to those documents, including the attorney-client privilege, attorney work-product 2 protection, or any other privilege or protection recognized by law. 3 4 DATED this 1st day of December 2017. 5 A 6 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 10 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ________________________________ [print or type full name], of 3 4 ________ _____________________________________________ [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Western District of 7 Washington on ____________ [date] in the case of Microsoft Corp. v. The Software King, et 8 al., No. 2:16-cv-01899-RSM. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 11 will not disclose in any manner any information or item that is subject to this Stipulated 12 Protective Order to any person or entity except in strict compliance with the provisions of this 13 Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Western District of Washington for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this action. 17 18 Date: __________________________ 19 City and State where sworn and signed: __________________________ 20 Printed name: ___________________ 21 Signature: ______________________ 22 23 24 25 26 27 STIPULATED PROTECTIVE ORDER (2:16-cv-01899-RSM) - 11 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

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